Daly, F. J.
The defendants, by their special agreement, qualified their liability as common carriers in two particulars.
First. They were not to be responsible for a loss by fire.
Second. If responsible for loss, the cost or value of the property at the time of shipment was to govern in the settlement of the loss. They did not by this agreement divest themselves of their public character as common carriers, but the effect of it was simply to exempt them from liability, if the property should be destroyed by fire, without fault or negligence on their part (Swindler v. Hilliard, 2 Richardson R. 286; New Jersey Steam, Nav. Co. v. Merchants' Bank, 6 How. U. S. 344).
It was not enough for the defendants, in their exoneration, [463]*463to prove that the property was destroyed by fire, but they were bound to go further, and show that its destruction by that element was without any fault on their part. This involved the necessity of showing how the fire and consequent destruction of property occurred, and what means, if any, were taken to prevent it or avert its effects. The owner is not to be presumed to know what was done by the carrier or his agents in the care and preservation of the property, but the carrier knows, or ought to know, as he has peculiarly within his power the means of knowledge, and it is for him to show it. The responsibility should be upon the one who can most easily discharge it; and it is more reasonable to require the carrier to prove, in his examination, that due care was exercised, than to impose upon the owner the obligation of proving the want of it (Singleton v. Hilliard, 1 Strobhart, Law, 203; Hays v. Kennedy, 3 Grant (Penn.), 351; Swindler v. Hilliard, supra; Arent v. Squire, 1 Daly, 347; Parsons v. Monteath,13 Barb. 354; Tardos v. Toulon, 14 La. An. 229; Smith v. New York Central Railroad, 43 Barb. 229). “The general rule undoubtedly is,” says Mr. Justice Johnson, in the case last above cited,.“ that the burden of proof is always upon the party who asserts the existence of any fact which infers legal responsibility. But the exception is equally well established, that in every case the onus prdbandi lies upon the party who is interested to support his case by a particular fact which lies more particularly within his knowledge, or of which he must be supposed to be cognizant.” The ruling of the court, therefore, that the burden of proof was upon the defendants to show that the destruction of the cotton by fire was not caused by negligence on their part, was correct, and the exception was not well taken. The fire originated in a steamboat used by the defendants in the transportation of freight. The steamer was lying at the wharf upon which the defendants’ depot for the reception of freight was erected, and the fire, when discovered, had obtained such headway, and its course was so rapid, owing to the prevalence of a high wind, that it was communicated to the depot, which, with its contents, was destroyed, the means resorted to by the defendants’ agents and others, to arrest the progress of the fire proving ineffectual. It did not [464]*464appear upon the trial how the fire originated in the steamboat, and it may be that the defendants did not know, or that they gave all the proof in explanation of it that it was in their power to offer; but this would not suffice, if the fire might have been prevented by that degree of care on their part which ought to have been exercised to guard against the occurrence of such accidents.
Pothier, in his Traite du Contrat de Louage (§§ 193, 194), after remarking that the occupant of a house is, with respect to its preservation, answerable, not only for his own negligence, but also for that of his family, and for the servants and workpeople whom he employs there, says that as a fire ordinarily happens in a house through the fault of the persons who live in it, it may fairly be presumed, when one occurs, that it was owing to the fault of the occupier or his servants, and he is therefore held to make good the loss, unless he can show that it arose from inevitable accident (casfortuit), or was communicated from another building—a rule that would be quite as applicable to a carrier or any other bailee for hire as to the lessor of a house. If the carrier cannot explain how the fire occurred which destroyed the property entrusted to his charge, it is quite as consonant with justice to presume that it must have arisen through the negligence or want of proper care of himself or of his agents as to presume that it was the result of inevitable accident. Or if no presumption is to be indulged in where the cause of the fire is not or cannot be explained, it may at least be said sthat it is incumbent upon the carrier to show that he exercised all the care and diligence for the safety of the property that could be reasonably expected of him under the circumstances.
The jury in this case must be regarded as having found that the defendants did not exercise. that degree of care which was required of them to guard against such accidents. The judge told them that the burden was upon the defendants to satisfy them that the loss by fire was not occasioned by negligence on their part; that if the defendants omitted to take that degree of care which persons of ordinary prudence would naturally take of such property under such circumstances, and if that occasioned or contributed to the loss, the defendants were [465]*465liable; to which the defendants excepted. This was substantially instructing the jury that the defendants were bound to exercise ordinary care and diligence (Story on Bailments, § 11; Edwards on Bailments, 3), which is the law in respect to bailees for hire; and they did not exercise it, if the want of it occasioned or contributed to the loss. The exception, therefore, to this part of the judge’s charge was not well taken. The jury, after having retired to deliberate, sent the following question in writing to the judge: “ If we are satisfied the proper precaution was not taken to prevent fire on board, through the neglect to place a watchman there, are we to find for the plaintiffs for the whole amount ? ” Upon which the judge instructed them that “ the omission to place a watchman actually on the boat, specially charged with the duty of guarding her, might be considered by the jury on the question of negligence in the case,” to which instruction the defendants excepted.
It was no error on the part of the judge to tell the jury that they might take this circumstance into consideration, for it was for the jury to determine upon all the circumstances whether there was a want of ordinary care and diligence or not.
Ordinary care is generally defined by the text-writers to be the common prudence which men of business, or heads of families, ordinarily take of their own property, or usually exhibit in the management of their own affairs. But the' intrinsic difficulty of reducing what it is within the limits of a definition, is such that it becomes, as Judge Story has remarked in his work upon Bailments (§ 11), “less a matter of law than of fact.” In nearly every instance where the question arises, it involves the question, what should or should not have been done by the party upon whom the obligation was imposed ; and this is usually a question that can be properly determined only by a consideration of all the circumstances, and one that a jury is generally quite as competent to pass upon as a court. The rule that the bailee must take the same care as men of common prudence usually take of their own property, or exhibit in the management of their own [466]*466affairs, is to a certain extent a guide, but it is a very vague one. It is a test founded upon that kind of knowledge or experience which is common to all mankind, and of which the twelve men in the jury-box may have as much, or more, than the judge. In Crook v. Jadis (5 Barn. & Ad. 909), where the question was whether the defendant was answerable or not for gross negligence, Taunton, J., said : “ I cannot estimate the degree of care which a prudent man should take.” In Vaughan v. Menlove (3 Bing. N. C. 468), where the same question arose, Chief Justice Tindal said: “ The care taken by a prudent man has always been the rule laid down ; and as to the supposed difficulty of applying it, a jury has always been - able to say whether, taking that rule as their guide, there has been negligence on the occasion in question.” In Storer v. Gowen (18 Maine, 174), where there was the same question, it was held that it was the province of the jury, and not of the court, to pass upon it; and in Whitney v. Lee (8 Met. 91), Chief Justice Shaw held that as it is difficult to mark the lines of distinction between different degrees of negligence, so as to show precisely where the one begins and the other ends, therefore,, by the common law, it is left to the jury to say, under the circumstances, whether the particular case is under the one or the other. These, it is true, are cases where the question involved was not the existence of negligence, but the degree of it; but the reasons upon which they are founded apply equally, in my opinion, in a case where the existence of negligence depends upon the question whether the degree of care was taken which men of common prudence take of their own property. In a recent case (Philadelphia Railroad Co. v. Spearen, 47 Penn. St. 300), the court held that there is “ no absolute rule, as to what constitutes negligence; conduct which might be so termed in one case being in another considered as ordinary care ; that it is therefore always a question of fact for the jury, under the instruction of the court, as to the relative degree of care, or the want of it, growing out of the circumstances and conduct of the parties.” And Angel, in his work on Carriers (§§ 51, 184), gives it as the result of his examination of the authorities, that in most cases the question of ordinary negligence; [467]*467is more a question of fact to be determined by the jury than of law. The opinion of Judges Johnson and Mason, in the respective cases of Ireland v. Oswego Railroad Co. (13 N. Y. 533), and Keller v. New York Central Railroad Go. (24 How. Pr. 177), were to the effect that what constitutes negligence is an inference of the mind from the facts and circumstances of the case; that, as minds are differently constituted, the inference from a given state of facts will not always be the same ; and that, therefore, though all the witnesses may agree in their statement, the true course is to leave the determination of the question to the jury, under proper instruction, unless the facts are so clear and decided that the inference is irresistible. “ If it is necessary,” says Judge Selden, in Bernhardt v. Rensselaer & Saratoga Railroad Co. (23 How. Pr. 168), “ to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proved : this involving, as it generally must, more or less of conjecture, can only be settled by a jury;” and Judge Porter, in Ernst v. Hudson River Railroad Co. (35 M. Y. 40), remarking upon the liability of judges to differ, and pointing to the fact that, even in the cases which have been held so plain as to justify a nonsuit, there have been few in which the judges have not themselves disagreed, pertinently asks if judges “ are less liable to err than jurors on questions of pure fact pertaining to the ordinary affairs of life.” “ Our law,” he continues, “ is framed upon the theory that upon such questions the citizen can rely with more security on the concurrent judgment of twelve jurors than on the majority vote of a divided bench. Unanimity is not required in our decisions upon questions of law. It is otherwise with jurors charged with the determination of questions of fact; and such questions should not be withheld from the usual arbitration, unless the evidence leads so clearly to one result, that there is no room for honest difference between intelligent and upright men.”
From the very nature, therefore, of the subject-matter; from the difficulty of a judge applying to the circumstances such a test as the care which men of common prudence ordinarily exhibit, and determining upon a given state of facts as [468]*468matter of law, that it was exercised or that it was not, in which his judgment may be no better than that of the men who are sitting upon the jury; and from the fact that where such a test is to be applied, every case must be determined more or less upon its own circumstances, there can be no better course than to leave such a question to be settled by the jury, the united judgment of the twelve men who compose the jury being as certain and as satisfactory a mode of determining it as for the court to undertake to work it out upon the facts by a course of legal reasoning. It may be that a judge can say upon the facts proved that there is not one which could have any tendency to show the want of that care which the law demands, or that the failure to exercise it has been'so conclusively shown that there is nothing which the jury could consider ; “ but such instances,” as was said by Judge Selden, in Bernhardt v. Rensselaer & Saratoga Railroad Co. (supra), “ must be rareand that they are so has been the result of my observation, having had a long experience in the trial of actions involving such questions. As a general rule, therefore, where the liability of the bailee turns upon the point whether the loss or injury were owing to the want of ordinary care and diligence on his part, it should, even where there is no conflict as to the facts, be left to the jury to determine, giving them the rule above referred to as their guide; and their verdict should be regarded as decisive and final upon such a question, unless the case is one warranting the conclusion that they must have been influenced in their verdict by other motives than the consideration of the circumstances arising upon the evidence.
When the fire was discovered, the smoke was issuing from the guards of the boat, and came out through a grating upon the forward deck, near one of the boilers, and in the vicinity of the fire-room. When the engineer came upon the deck, the fire was coming out, as he testified, through a small rod, and had broken out through a small hole alongside the boiler. He cut a hole in the deck with an axe at the deck rod, a place where the fire came from, about fifteen feet forward of the boiler, when instantly the flames rushed up to a height of nearly six feet, and in ten minutes the deck was on fire. In five min[469]*469utes the pier caught, and in less than half an hour the boat and the depot were in flames, the fire running all over, in the language of one of the witnesses, “like a tinder-box, so that water had no effect upon it.” The defendants showed satisfactorily that it did not originate in the fire-room, and also that the forward boiler had been washed out and the fire in the furnace extinguished at least twelve hours before the discovery of the fire. It was discovered at midnight, between half-past twelve and one o’clock, the engineers, hands, and all on board being at the time asleep in their beds. The assistant-engineer was below, in the vicinity of the fire-room, as late as nine o’clock in the evening, and there was no indication there at that time, by sight or smell, of the existence of fire; but, in little more than three hours after, it had occurred, and attained to such a magnitude as to be beyond control.
It would not be an unreasonable assumption on the part of the jury to conclude upon this state of facts that the fire originated through the negligence of some one on board the steamboat. There was no indication of it at nine o’clock in the evening in the vicinity from whence it was proceeding when discovered, and where it probably originated; and no person was shown to have been on board the boat during the evening but those attached to the vessel.
But there is no occasion to dwell upon this view of the case, as the jury have very clearly indicated by the point upon which they requested instruction, and by their verdict, that in their opinion there was a want of ordinary care and diligence on the part of the defendants in not maintaining a watch throughout the boat during the night, to guard against accidents by fire, and that if that had been done the fire would not have occurred, or its extending could have been prevented. It was shown that the boat—the running of which was only temporarily suspended during Sunday—was lying close against the pier, upon which was the depot, containing a large quantity of combustible materials, such as cotton, hemp, barrels of oil, of whiskey and of wine, boxes of candles, tierces of lard, &c., the roof of the building being covered with, or having so much tar upon it, that, in the language of one of defendants’ witnesses, [470]*470“it went like a match.” The defendants kept four night watchmen upon the pier to protect the property from theft .and to guard against accidents by fire. They were all on duty when the fire was discovered, and one of them had charge of the boat, but he did not go below the deck, his duty being to watch the freight upon the boat and look after her lines and tackle. It was his practice to go around every hour, and sometimes more frequently, and if he heard any noise, or anything which attracted his attention, to go on board of the boat. The precautions taken to guard against accidents by fire upon the pier seem to have been ample, but the jury were evidently of opinion that they were not sufficient to guard against it on board the boat; and as the boat was lying close to a depot in which there was á very large quantity of combustible materials, it was certainly, as the event proved, leaving the depot in imminent peril if the boat should take fire at night when all on board of her had retired to rest. A steamboat in which fire is used as the means of propelling her, and is in use more or less for the convenience and wants of those who are employed upon and live on board of her, may require greater watchfulness to guard against accidents of this nature than was bestowed upon this occasion; at least, so the jury thought, and we cannot, as matter of law, say that they erred in coming to that conclusion. In view of the peril, in view of the boat’s taking fire, of the danger in that event, to which the depot was exposed, from the quantity of tar upon the roof, and the combustible nature of the goods stored in it, it was evidently, in the judgment of the jury, required, in the exercise of ordinary care and diligence on the part of the defendants, that they should have kept .up a watch throughout the boat during the night, or at least after the officers and men had retired to rest; and of the propriety or necessity of this, as an act of common prudence on the part of the defendants under the circumstances, for the preservation and safety of the property, the twelve men who sat upon the jury were as competent to judge as this court could be.
“ Diligence,” says Story, “ is usually proportioned to the degree of danger of loss; the danger is, in different states of society, compounded of very different elements, and the custom of trade [471]*471.and the course of business have an important influence ” (Story-on Bailments, § 14). The judge, in his instructions to the jury, brought the question down to this standard, by telling them that if the defendants omitted to take that degree of care which persons of ordinary prudence would usually take of such property, under such cvrcumsta/nces, the defendants were liable. This was certainly all that the defendants could ask as matter of law from the court, and the united judgment of the jury that they did not do this should be treated by us as decisive.
It is claimed that the judge erred in telling the jury that if the omission of the defendants to exercise ordinary care and diligence contributed to the loss, the defendants were liable. This was excepted to, but the exception was not well taken. I have already stated that the defendants did not, by their special agreement, divest themselves of their public character as common carriers, for their extraordinary liability remained, except in the case of a loss by fire.
The effect of the stipulation they entered into was simply to put that peril upon the same footing as a loss by the act of G-od or the public enemies, from which the law exempts them ; and the same rule should be applied that is applied in that case —that, to entitle him to the exemption, the carrier must be himself without fault (Read v. Spaulding, 30 N. Y. 630). The act of negligence may have been remote, but, if it contributed to the injury, he is answerable. “ To avail himself of such exemption,” says Davies, J., in the case above cited, “he must show that he was free from fault at the time.” “His act or neglect,” says Woodruff, J., in the same case (5 Bosw. 408), “ must not concur a/nd contribute to the injury.” “ Ho wrongdoer,” says Tindal, C. J., in Davis v. Garrett (6 Bing. 716), “ can be allowed to apportion or qualify his own wrong.”
If, therefore, the negligent act or omission of the defendants, in the language of the judge, contributed to the loss, it was not for the court or the jury to measure in what proportion or degree, if the act or omission was in itself a want of orditiary care and diligence; unless, as was said by Tindal, C. J., in the case above cited, the loss or injury must have happened, notwithstanding the act or omission complained of. The cases upon [472]*472which the defendants’ counsel rely for the proposition that the-loss must have arisen solely from the defendants’ negligence,., are cases where the point involved was co-operating or contributing negligence on the part of the plaintiffs, and do not apply..
The liability of the defendants as carriers continued after-the cotton was deposited in the depot, until a reasonable length of time was afforded to enable the plaintiffs to take it away and what was a reasonable length of time, under the circumstances, was a question for the jury. (Congar v. Galena &c. Railroad Co. 17 Wis. 477; Jackson v. Sacramento &c. Railroad Co. 23 Cal. 268; Morris &c. Railroad Co. v. Ayres, 5 Dutch. N. J. 393; New Albany Railroad Co. v. Campbell,.. 12 Ind. 55; Garside v. Trent Nav. Co. 4 T. R. 581; Angel on Carriers, §§ 284, 287, 303.) This rule was in no way affected by the provision in the contract that the cotton was to be de- • livered at the defendants’ depot; for a delivery there, upon notice to the plaintiffs, would have sufficed, if no such stipulation.! had been made (Thomas v. Boston &c. Railroad Co. 10 Met. 472).
In my judgment, the question, upon which so much evidence has been given upon the trial, and which has been so elaborately discussed upon the argument, whether or not a reasonable length of time had elapsed, is not material, if the destruction of' the property by fire was attributable to the want of ordinary care and diligence on the part of the defendants. Fifty-nine bales arrived on Saturday, of which no notice was given to the • consigeees or opportunity afforded them to remove them; and as respects the other seventy-nine bales, which were left over after three o’clock on Saturday afternoon for the plaintiff’s con- ■ venience, the defendants were, under the circumstances, to be regarded as bailees, bound to the exercise of ordinary care and diligence.
In Thomas v. Boston &c. Railroad Co. (10 Mete. 472), a carefully considered case, the goods had, as in the present case,., been partially taken away, and the residue was left in the depot for the plaintiff’s convenience. No agreement was made for the storage of what was left, nor any compensation paid for1 taking care of it, the sum paid being the freight for its carriage,. [473]*473which was payable at the delivery of the goods, upon the arrival of the car's. Upon this state of facts, a portion of the goods left having been lost, the court held that the relation of the defendants as common carriers had °ceased, and that they were responsible only for the want of ordinary care and diligence in tho custody and safe-keeping of the goods. (See, to the same effect, Roth v. Buffalo &c. Railroad Co. 34 N. Y. 553, 554; and Clendaniel v. Tuckerman,, 17 Barb. 189, 190.)
But if the question of reasonable time was material, there was nothing in the ruling of the court of which the defendants have a right to complain.
An exception was taken as to the propriety of leaving it to the jury to determine whether a reasonable length of time had elapsed or not, upon the ground that, as there was no conflict upon the evidence, it was to be decided by the court purely as a question of law. It was said by Judge Smith, in Roth v.. Buffalo &c. Railroad Co. (supra), that when there is no dispute as to the facts, the question is purely one of law, and that the court should decide it; but the authorities quoted by the judge do not sustain that proposition in the broad terms in which he has laid it down. They relate mainly to the question of what is reasonable notice of the dishonor of a bill, which, when the facts are undisputed, is a question of law, from the necessity of having some fixed legal standard in respect to bills and promissory notes, that commercial men may know the law and be enabled to protect themselves (Bryden v. Bryden, 11 John. 187).
But what is a reasonable time within which goods deliverable at the warehouse or depot of the earner must be taken away, is a question more or less dependent upon circumstances— such as the nature of the goods, the mode of doing business, as well as other considerations, upon which men equally intelligent may come to different conclusions; making it especially appropriate that such questions, as a general rule, should be determined by the jury, and not by the court. “The question,” says Angel, “ of what is requisite to constitute a competent delivery by the carrier, or such a delivery as will determine the transit and dissolve his liability, in a great measure is left to-[474]*474the jury to determine” (Angel on Carriers, § 282). What is a reasonable length'of time in cases of demurrage, is determined upon all the circumstances legitimately bearing upon the case, and is a question for the jury (Cross v. Beard, 26 N. Y. 89, 92). A case may arise in which the court can say at once, as matter of law, that more than a reasonable length of time has elapsed, as in Nudd v. Wells (11 Wis. R. 407), where a package was to be conveyed by a carrier from Boston to Milwaukie, and a,year had gone by without his delivering it; but in the great majority of cases, the question should be left to be determined by the jury, and the present is not one which should be an exception to such a rule.
Several exceptions were taken to what the judge said to the jury upon the question of reasonable time. After reading the passages excepted to, I do not think that the judge meant that any of the circumstances to which he referred were to be taken by the jury as conclusive in law upon the question as to what would or would not be a reasonable time, or that he meant to give them any positive instruction founded upon the circumstances upon ,which he commented. If I am mistaken in this respect, and his language is capable of a different construction, and the effect of it was to take away from the jury the consideration of any of the circumstances and dispose of them as questions of law, then it is sufficient to say that the effect of this part of his charge was entirely obviated (Stoddard v. Long Island Railroad Co. 5 Sandf. 189), and made nugatory by his response to the question which was afterwards submitted to him in writing by the jury: “ Does the law specify any period as a reasonable time, or is it fixed by custom \ ” To which he answered, “Neither the law nor any custom proven in this case1 defines what is a reasonable time. The jury must determine that as afoot from all the circumstances of this particular case.” The determination of it by the jury as a fact necessarily excluded the consideration of any circumstances as matter of law, and left the disposition of the whole question1 entirely to the jury.
The remaining questions raíate to the admission and rejection of evidence and to the measure of damages. The plaintiff [475]*475was allowed to read the charter of the defendants, from the Session Laws of the State of New Jersey, to show that the defendants had the exclusive right of transportation, by railroad, across the State of New Jersey, for the purpose of raising the point that the defendants could make no contract in derogation of their common-law liability, and because it bore upon the question of delivery in the city of New York. There was no question in the case respecting a delivery in New York, except so far as it was involved in the question whether a reasonable length of time had or had not elapsed for the consignees to remove the cotton from the depot; a question, as I have already said, which was immaterial, if the destruction of the cotton was owing to the want of ordinary care and diligence on the part of the defendants; for, if that was exercised, the defendants were not liable at all; and as the court ruled against the plaintiff upon the- other ground, holding that the defendants could limit their liability, the reception of the testimony could have no bearing upon any of the points on which the defendants relied for their defence. The charter is not printed in the case, and therefore we cannot say that there was anything in it which necessarily had, or which possibly might have had, an effect upon the minds of the jury, and influenced their verdict. The extreme length to which our courts formerly carried the practice of granting new trials, where incompetent evidence was admitted, which might, though it probably did not, affect the verdict ( Underhill v. New York & Harlem Railroad Co. 21 Barb. 489; Farmers' Bank v. Whinfield, 24 Wend. 427), has operated very injuriously, and tended more to delay and obstruct than to aid the administration of justice. Of late years the courts of this and other States have shown a disposition to depart from this rigid and very technical rule. If evidence was rejected that ought to have been received, or evidence received that ought to have been rejected, the defendants are entitled to a new trial, is, says Wright, J., in Forrest v. Forrest (25 N. Y. 510), “ hardly the rule now in a court of law; for, latterly, even these courts undertake to judge for themselves of the materiality of evidence found to have been improperly admitted or rejected, and when satisfied that no injustice has been done, and that [476]*476the verdict would have been the same with or without such evidence, they have refused a new trial.”
It was wholly immaterial what instruction the defendants had given to their agents. The question was, what was done by these agents ? for, if the agents had neglected to follow these instructions, the defendants would still have been answerable, and if the agents fulfilled them, it was an easy matter to prove what they did. This the defendants were allowed to show, and did show very fully. The watchmen testified what was the nature of their duties, and what they did in the discharge of them, which was all that was material. As all the other exceptions taken to the reception or rejection of evidence, save one, are not mentioned in the defendants’ points, and were not referred to upon the argument, we may assume that they are abandoned and need not be reviewed.
The remaining one relates to the reception of evidence as to-the value of the cotton in New York, the place of delivery, and may be reviewed in connection with the rule which the judge laid down in his charge as to the measure of damages. He told the jury that the provision in the contract that the value of the property at the date of the shipment should govern in the settlement of the loss, referred to an amicable settlement of it; that it did not apply where a settfement is refused and the-party is driven to his suit; and that the plaintiff, if he recovered, was entitled to the market value of the cotton in the city of New York at the time when it should have been delivered. This, I think, was erroneous. There is nothing in the language of the contract that would warrant the putting of such a qualification upon it, It refers to the occurrence of losses for which the defendants may be responsible. The settlement—that is, the adjustment and payment of the loss—is made dependent upon the question whether they are responsible for it or not,' and the contract does not provide how that is to be ascertained. If it is in doubt, or in dispute, and the parties cannot agree, it can be determined only by the decision of a court of law, or by a mutual agreement to refer it to arbitration; but, under the-construction - given by the judge, the defendants, when a loss, occurred, would be compelled to waive all question as to their-[477]*477responsibility, or lose the benefit of the stipulation which they had made. The language used will not bear such an interpretation. The obvious meaning is: when it is ascertained that they are responsible for a loss that has occurred, which, after inquiry, they may satisfy themselves is the fact, and admit, or which, doubting or disputing, they may leave to be decided by a resort to the ordinary tribunals, that they are to be answerable only for the value of the cotton at the date of its shipment. It is said in the case, that the cost of the cotton when it was shipped was proved by the bills of the purchaser which are in evidence. If the plaintiff, therefore, so elects, the verdict may be reduced to the value of the cotton at the time of shipment, and affirmed for that amount; if not, a new trial will have to be ordered.